In his book, Tales Told for Children. Hans Christian Andersen tells the tale of "The Emperor's New Clothes." It is a tale of about two swindlers who promise an emperor a new suit of clothes that they say is invisible to those who are unfit for their positions, stupid, or incompetent – while in reality, they make no clothes at all, making everyone believe the clothes are invisible to them. When the emperor parades before his subjects in his new "clothes", no one dares to say that they do not see any suit of clothes on him for fear that they will be seen as stupid. Finally, a child cries out, "But he isn't wearing anything at all!"

The tale has reached the status of legend. It stands for anything "Emperor's new clothes" is now a standard metaphor for anything that smacks of pretentiousness, pomposity, social hypocrisy, collective denial, or hollow ostentatiousness. It took someone who obviously did not have the sophistication to see the invisible clothes to have the courage to challenge authority and to speak truth to a powerful lie. Social psychologists use the pluralistic ignorance to describe a situation where people erroneously infer that they feel differently from their peers, even though they are behaving similarly. This is also described as "no one believes, but everyone thinks that everyone believes. Or alternatively, everyone is ignorant to whether the emperor has clothes on or not, but believes that everyone else is not ignorant." Nothing is said out of fear.

Pluralistic ignorance is seen in our daily lives. For instance, Many law school students sit in lecture halls listening to a complicated lecture. After many minutes of incomprehensible material, the lecturer pauses and asks if there are any questions. No hands go up. You look around the room. Could these people really understand what the lecturer is talking about? You yourself are completely lost. Your fear of looking stupid keeps you from raising your hand, but as you look around the room at your impassive classmates, you interpret their similar behavior differently: You take their failure to raise their hands as a sign that they understand the lecture, that they genuinely have no questions. These different assumptions you make about the causes of your own behavior and the causes of your classmates’ behavior constitute pluralistic ignorance.

Fortunately, pluralistic ignorance can be dispelled, and its negative consequences alleviated, through education. For example, most law school form study groups and discuss the incomprehensible material and find that others did not understand the material either. They work together to understand what was once incomprehensible material.

In State v. Loomis, 2016 WI 68, 371 Wis. 2d 235, 881 N.W.2d 749 the Wisconsin Supreme Court held that a circuit court’s consideration of the COMPAS, an algorithmic risk assessment, at sentencing does not violate a defendant’s right to due process. The problem in reaching this conclusion? The methodology used to produce the assessment was not disclosed neither to the court nor to the defendant. The Court was not troubled by this fact since COMPAS uses only publicly available data and data provided by the defendant. Therefore, the court concluded that Loomis could have denied or explained any information that went into making the report and therefore could have verified the accuracy of the information used in sentencing. Loomis, 881 N.W.2d at 761-62. In her concurrence, Justice Abrahamson agreed with the judgment, but was concerned that the court had difficulty understanding algorithmic risk assessments. Id. at 774 (Abrahamson, J., concurring).

Justice Abrahamson raised her hand and told us that this emperor really has no clothes. Loomis avoided dealing with criticisms of algorithmic risk assessments like COMPAS. But a number of people have begun to raise their hand and question whether this emperor really wears any clothes. See, e.g., Eric Holder, Att’y Gen., U.S. Dep’t of Justice, Address at the National Association of Criminal Defense Lawyers 57th Annual Meeting and 13th State Criminal Justice Network Conference (Aug. 1, 2014). The Attorney General specifically said that the utility of any data from a algorithmic risk assessment depends upon “how this data is harnessed and put to use.” Specifically, “we need to be sure the use of aggregate data analysis won’t have unintended consequences . . . like inadvertently undermin[ing] our efforts to ensure individualized and equal justice. By basing sentencing decisions on static factors and immutable characteristics – like the defendant’s education level, socioeconomic background, or neighborhood – they may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society.” See also, Attorney General Eric Holder Delivers Remarks at the Annual Meeting of the American Bar Association's House of Delegates (risk assessment might perpetuate racial disparities already prevalent throughout the criminal justice system.)

Legal commentators tell us that “overt discrimination based on demographics and socioeconomic status.” Sonja B. Starr, Evidence-Based Sentencing and the Scientific Rationalization of Discrimination, 66 Stan. L. Rev. 803, 806 (2014). In fact, testing of Independent testing of the COMPAS assessment tool used in Loomis’s sentencing showed that offenders of color were more likely to receive higher risk ratings than were white offenders. Julia Angwin et al., “Machine Bias” (Propublica 2016). For instance, a black teenage defendant with no prior record who stole a bicycle with a middle-aged white male who stole hardware from a Home Depot. Importantly, he had prior armed robbery convictions, whereas she had no record. COMPAS deemed the young girl a high-risk individual and her older counterpart a low-risk one. Id. COMPAS has been shown to be racially biased by other researchers. Clearly, evidence-based practices are not inherently benign with respect to their effect on mass incarceration and the breadth of the penal state. Cecelia Klingele, The Promises and Perils of Evidence-Based Corrections, 91 Notre Dame L. Rev. (2016).

Someone needs to tell the emperor, that risk assessments include criminal history as a factor in the tool, which—owing to potential systemic bias in policing and prosecution—might elevate risk scores for offenders who are black. Using historical data to train risk assessment tools could mean that machines are copying the mistakes of the past:

Modern-day risk assessment tools are often driven by algorithms trained on historical crime data. As we’ve covered before, machine-learning algorithms use statistics to find patterns in data. So if you feed it historical crime data, it will pick out the patterns associated with crime. But those patterns are statistical correlations—nowhere near the same as causations. If an algorithm found, for example, that low income was correlated with high recidivism, it would leave you none the wiser about whether low income actually caused crime. But this is precisely what risk assessment tools do: they turn correlative insights into causal scoring mechanisms. Now populations that have historically been disproportionately targeted by law enforcement—especially low-income and minority communities—are at risk of being slapped with high recidivism scores. As a result, the algorithm could amplify and perpetuate embedded biases and generate even more bias-tainted data to feed a vicious cycle. Because most risk assessment algorithms are proprietary, it’s also impossible to interrogate their decisions or hold them accountable.

People who identify as lesbian, gay, bisexual, or transgender (LGBT) often face social stigma, discrimination, and other challenges not encountered by people who identify as heterosexual. As Matthew Todd explains in his book Straight Jacket: Overcoming Society’s Legacy of Gay Shame, “It is a shame with which we were saddled as children, to which we continue to be culturally subjected. The problem gay people have isn’t their sexuality, but rather society’s attitude to it. It is our experience of growing up in a society that still does not fully accept that people can be anything other than heterosexual and cisgendered [born into the physical gender you feel you are]”.

Possibly as a coping mechanism in the face of homophobia, figures indicate that gay people are seven times more likely to take illegal drugs than the general population, with one in five of those surveyed showing signs of dependency on drugs or alcohol. Interestingly, a study found that nonadherence to traditional gender roles for women may influence drinking among lesbians—especially in lower- and middle-income societies where the value placed on traditional gender roles remains strong. These findings are consistent with those from a study where it was found adoption of nontraditional gender roles and higher rates of drinking among lesbian women than among heterosexual women. The predominant theoretical explanation for this is termed “minority stress.” Underlying this perspective are the assumptions that minority stressors are unique (not experienced by nonstigmatized populations), chronic (related to social and cultural structures), and socially based (stemming from social processes, institutions, and structures). As a result of such social pressures, several co-occurring disorders, or mental illnesses that are present alongside alcoholism, are more common among members of the LGBTQ community.

It is incumbent upon a sentencing court in passing a fair and just sentence to understand the excess mental distress and disorders due to social stress imposed on a gay defendant. A sentencing court has the weight of centuries of hatred and bigotry, which can only be dismantled by a meaningful sentence that protects society while rehabilitating the defendant. In fact, research has found that by accepting a defendant as being gay a sentencing court will enhance her sobriety.

This is especially true since women repeatedly have stated that the types of services available to them for OWI treatment were often limited and failed to meet their needs; especially the case in rural jurisdictions. Female Drunk Drivers: A Qualitative Study (Traffic Injury Research Foundation 2013) p.35. Additionally, women often have a harder time than male alcoholics re-integrating themselves into the community after they have been punished, said Sandy DeYoung, a social worker who counsels female alcoholics at Taycheedah. David Doege, For many women drunken drivers, jail not a cure, Milwaukee Journal Sentinel (April 15, 2004). "The issues for women are different than men. That's been a problem we didn't understand for a long time." Id.

People who identify as lesbian, gay, bisexual, or transgender (LGBT) often face social stigma, discrimination, and other challenges not encountered by people who identify as heterosexual. As Matthew Todd explains in his book Straight Jacket: Overcoming Society’s Legacy of Gay Shame, “It is a shame with which we were saddled as children, to which we continue to be culturally subjected. The problem gay people have isn’t their sexuality, but rather society’s attitude to it. It is our experience of growing up in a society that still does not fully accept that people can be anything other than heterosexual and cisgendered [born into the physical gender you feel you are]”.

Possibly as a coping mechanism in the face of homophobia, figures indicate that gay people are seven times more likely to take illegal drugs than the general population, with one in five of those surveyed showing signs of dependency on drugs or alcohol. Interestingly, a study found that nonadherence to traditional gender roles for women may influence drinking among lesbians—especially in lower- and middle-income societies where the value placed on traditional gender roles remains strong. These findings are consistent with those from a study where it was found adoption of nontraditional gender roles and higher rates of drinking among lesbian women than among heterosexual women. The predominant theoretical explanation for this is termed “minority stress.” Underlying this perspective are the assumptions that minority stressors are unique (not experienced by nonstigmatized populations), chronic (related to social and cultural structures), and socially based (stemming from social processes, institutions, and structures). As a result of such social pressures, several co-occurring disorders, or mental illnesses that are present alongside alcoholism, are more common among members of the LGBTQ community.

It is incumbent upon a sentencing court in passing a fair and just sentence to understand the excess mental distress and disorders due to social stress imposed on a gay defendant. A sentencing court has the weight of centuries of hatred and bigotry, which can only be dismantled by a meaningful sentence that protects society while rehabilitating the defendant. In fact, research has found that by accepting a defendant as being gay a sentencing court will enhance her sobriety.

This is especially true since women repeatedly have stated that the types of services available to them for OWI treatment were often limited and failed to meet their needs; especially the case in rural jurisdictions. Female Drunk Drivers: A Qualitative Study (Traffic Injury Research Foundation 2013) p.35. Additionally, women often have a harder time than male alcoholics re-integrating themselves into the community after they have been punished, said Sandy DeYoung, a social worker who counsels female alcoholics at Taycheedah. David Doege, For many women drunken drivers, jail not a cure, Milwaukee Journal Sentinel (April 15, 2004). "The issues for women are different than men. That's been a problem we didn't understand for a long time." Id.

The Trump Administration wants you to believe that by building a steel wall over part of our southern border will make America safer from terrorists.

Before we examine the merits of this idea, it should be known who is making money on the wall. The latest design of Trump's 'wall' (which he acknowledges is a barrier more than a wall) includes high steel slats with spikes (the better to impale people and birds with). Some estimates have the slats costing upwards of $24.5M per mile (for a 1,993 mile border that logistically cannot be contiguous). That's a lot of money, especially with the steel tariffs that Trump has demanded.

Who stands to make a profit from the sale of the steel? Unsurprisingly, a Russian steel company whose biggest shareholder is an oligarch and Trump family friend. The company, Evraz North America, supplied Keystone from its steel plants in Canada. The oligarch who owns Evraz, Roman Abramovich, is a very close ally to Putin (owing much of his significant wealth to him) and a personal friend to Trump and the Kushners.

One of history’s greatest mass murderer understood something that apparently Trump does not. Stalin supposedly once said, “Ideas are far more powerful than guns. We don't let our people have guns. Why should we let them have ideas?”

Will the wall stop harmful ideas from entering America? No. As stated by John B. Alexander, you must realize that the most dangerous and virtually unprotected port of entry for terrorism is the human mind and no wall is going to prevent ideas from entering. In Parameters, the Journal of the U.S. Army War College, Lt. Col. Timothy L. Thomas explains that the concept of “‘information warfare’ falls short when the individual soldier, not his equipment, becomes the target of attack.” What is depicted here is that the targets for ideological persuasion are far wider than members of the military but the effects just as devastating.

Bertrand Russell once said, "The whole problem with the world is that fools and fanatics are always so certain of themselves, and wiser people so full of doubts." Similarly in his poem, “The Second Coming,” Yeats says, ““The best lack all conviction, while the worst are full of passionate intensity.”

This problem is clearly illustrated in matters of morality and God. There are many people who passionately assert that morality cannot exist without a belief in God. This issue is dealt with in a dialogue between Socrates and Euthyphro.

Socrates was awaiting trial on the charge of corrupting youth and denying the existence of God. He was visited by Euthyphro who had come to have his father charged with murder since the father had killed a man. Euthyphro’s father had had a hired worker who had killed a slave, so Euthyphro’s father threw the worker into a pit -- bound and gagged -- and then left for another city to ask the authorities there how to proceed. While gone, the worker died in the pit from starvation and exposure to the elements. Euthyphro explains his father is angry with him for taking the part of the murderer and prosecuting his father. Euthyphro explained that some suggest my father did not kill him, and that if he did, dead man was but a murderer, and a son is immoral who prosecutes a father.

Socrates is stunned by Euthyphro’s confidence in bringing charges against his own father for murder. Socrates asked Euthyphro if it is always moral to prosecute someone for murder. Euthyphro explains that prosecuting anyone who is guilty of murder or of any similar crime-whether he be your father or mother, or whoever he may be-that makes no difference; and not to prosecute them is immoral. Ultimately, Euthyphro explains that morality is that which is dear to God, and immorality is that which is not dear to God. Clearly Euthyphro has told us that without God there is no morality.

The idea that morality cannot exist without God is interesting. If an act is moral simply because God commands it, then that means that any act – even the slaughtering of babies – is potentially moral. And if that is the case, then morality is intrinsically arbitrary, and the very word “moral” loses all meaning. Moral could just as easily be called evil. And if moral can be evil and evil can be moral, then it makes no sense to even use the words “moral” or “evil” to begin with. They cancel each other out. At best, we would just say that an action is something that God commands; calling it “moral” no longer signifies anything at all.

However, if you agree that something doesn’t become moral simply because God commands it, but rather, believe that God commands actions that are moral because he sees or recognizes them as being moral in and of themselves, then morality exists outside of, and independently of, God. In short, God becomes redundant. He is not necessary for morality.

As Walter Sinnott-Armstrong who is Chauncey Stillman Professor of Practical Ethics in the Department of Philosophy and the Kenan Institute for Ethics at Duke University concludes, based on his interpretation of the Euthyphro dilemma:

Assume that God commanded me not to rape. Did God have a reason to command this? If not, then His command was arbitrary, and an arbitrary command can’t make anything morally wrong. On the other hand, if God did have a reason to command us not to rape, then that reason is what makes rape morally wrong, and the command itself is superfluous. Hence, divine commands are either arbitrary or superfluous. Either way, morality cannot depend on God’s commands.

Euthyphro can’t seem understand the implications of Socrates’ question: does God command actions because they are moral in and of themselves, or do actions become moral only when and if God commands them? Perhaps its’ not that Euthyphro cannot understand the piercing significance of this question, but rather, that he can’t or will not allow himself to understand it. For to understand it suggests that morality does not depend on a god for its existence or content.

What if a president, backed into a corner and facing electoral defeat or impeachment, were to declare an emergency for the sake of holding on to power?

In 1976, Congress enacted the National Emergencies Act that limited the scope of response to declared states of emergency. The act: Revoked the powers that had been granted to the president under the four states of emergency that were still active in 1976. Prescribed procedures for invoking any powers in the future. Declared that states of emergency would automatically end one year after their declaration unless the president publishes a notice of renewal in the Federal Register within 90 days of the termination date. He or she must also officially notify Congress of the renewal. Required each house of Congress meet every six months to consider a vote to end the state of emergency.

According to Home Building and Loan Association v. Blaisdell, 290 U.S. 398, 440 (1934) characterized an emergency in terms of “urgency and relative infrequency of occurrence as well as equivalence to a public calamity resulting from fire, flood, or like disaster not reasonably subject to anticipation.”

So would our laws and institutions might not save us from a presidential power grab? Rulings such as Youngstown Sheet & Tube Company v. Sawyer, 343 U.S. 579 (1952) in which the Supreme Court invalidated President Harry Truman’s assertion of assertion of "inherent" executive power to take over steel mills during the Korean War, have been the exception. See, Maeva Marcus, Truman and the Steel Seizure Case: The Limits of Presidential Power (Constitutional Conflicts) (Duke University Press 1994). While an exception, the case does stand for the proposition that even in times of war, the executive power is subject to judicial scrutiny.

The high court also relied on Youngstown in Medellín v. Texas, 552 U.S. 491 (2008). In that case, President Bush had pressured the state of Texas to review the murder conviction of a Mexican citizen who had tortured and raped two teenage girls in 1993, arguing that a 2004 decision by the International Court of Justice (ICJ) required law enforcement authorities to tell the accused of his right under the Vienna Convention to notify Mexican diplomats of his detention. In a 6-to-3 decision, the Court held that ICJ rulings were not enforceable in the United States, and Bush's actions were unconstitutional. Quoting Youngstown Sheet & Tube, Chief Justice John Roberts concluded, "The president's authority to act, as with the exercise of any governmental power, 'must stem either from an act of Congress or from the Constitution itself.'"

It is for this reason that it is critical for people to express their concern to Congress

BY Alan Ball is a Professor of History at Marquette University in Milwaukee, WI.http://www.scowstats.com/2019/01/10/justice-abrahamsons-prominence-part-3/

A recentpost(inspired by Richard Posner’s Cardozo: A Study in Reputation) offered a means of assessing the influence of Justice Shirley Abrahamson during her unprecedented tenure on the bench. This technique compared the number of times that appellate courts cited her opinions with the number of times that they cited opinions written by her colleagues in Madison.[1] However, Posner did not confine himself to inspecting courts’ decisions, and neither will we, as there are other ways of gauging judicial stature. One of these—the frequency with which a justice’s opinions and other endeavors are cited by law-review articles—is today’s topic.Consider the contents of Table 1, showing the number of law-review citations of Justice Abrahamson’s activities and those of the 24 other justices who have served on the court during her 43 terms.[2] Most striking here is the enormous number of articles mentioning Justice Abrahamson compared to the sums for the other justices. In fact, Justice Abrahamson’s total of 993 is roughly six times the quantity for any of the next three justices: A.W. Bradley (175), Bablitch (173), and Coffey (161). Although the numbers are estimates—different random samples and different means for handling gray areas would yield slightly different figures (see the following footnote)—no defensible method would eliminate Justice Abrahamson’s overwhelming dominance.[3]All justices write majority opinions, concurrences, and dissents, thereby guaranteeing them appearances in the text or at least the footnotes of law review articles (unless a justice is very new to the bench). As a result, many (often most) of the law-review references in Table 1 are to judicial opinions authored or joined by the justices—akin to the citations of their opinions in other appellate decisions covered by the previouspost.[4] This is a meaningful measure of judicial influence, but another way to gain a sense of a justice’s standing is to focus on a subset of Table 1—namely, the number of law-review articles that mention (1) addresses delivered by a justice in public or professional settings and (2) articles (not judicial opinions) written by a justice.These two activities take us into the realm of voluntary accomplishments that enhance a justice’s eminence—and differentiate Justice Abrahamson even more sharply from the other justices than was the case in Table 1. As Table 2 reveals, the number of articles that cite Justice Abrahamson’s publications and speeches towers above the amounts for her colleagues—nearly seven times as many as the next highest total (that for Justice/Judge Sykes).[5] Indeed, Justice Abrahamson’s figure of 465 is three times as large as the sum of the articles that cite the publications and speeches of all of the 24 other justices combined.[6] Clearly, by this accounting, no other justice has been as prominent as Shirley Abrahamson—not even Justice Sykes, whose elevation to a federal judgeship greatly increased her number of hits.The techniques developed from Posner’s book are doubtless not the only ways of estimating a justice’s stature (and I’m always grateful to benefit from advice). But the tables in this post do suggest that most appraisals of the renown of Wisconsin Supreme Court justices will find Justice Abrahamson at the top of the rankings.

[1] Thanks again to Bill Tyroler for bringing Posner’s book to my attention.[2] The coverage of law-review articles in Lexis does not extend back past 1982. This, of course, reduces the number of hits for justices on the court at the beginning of our period—the late 1970s—which includes Justice Abrahamson.[3] Let’s say that a search for law-review articles mentioning Justice X delivers hits in 600 articles. Many of these hits will likely be “false positives”—other people with the same surname, for instance, or perfunctory references to Justice X, as in a list of the seven justices on the court in a given year. If these can be filtered out, we will be left primarily with hits of the sort that we desire: (1) references to a judicial opinion by (or joined by) Justice X; (2) references to an article or book authored by Justice X; (3) references to an address given by Justice X; (4) a tribute to Justice X; (5) a quoted comment by Justice X on matters regarding the court; and (6) other actions by Justice X pertaining to the legal system (such as forming a committee to draft a recommendation on some matter).To cope with the volume of hits, I adopted a sampling procedure resembling that employed by Posner. For justices with only a few hits—30 or 40 law-review articles—I examined every article individually. But for larger numbers of hits (over a thousand in some cases), I took a random sample of articles and determined the percentage of articles in this sample that had references of the sort that we are including. The percentage could then be used to approximate a justice’s total number of significant hits. For example, if Justice X had a raw total of 600 hits, and scrutiny of a random sample of 30 of these articles found that 75% of the sample contained references that we are counting, I would arrive at an estimate of 450 significant articles for Justice X (75% of 600). Sample sizes varied from justice to justice, but they always represented a much larger percentage of a justice’s total number of hits than was the case in the example furnished in Posner’s study.As with any selection criteria, there are some gray areas—notably, articles that refer to a justice’s election campaign. Generally, I have counted articles with references to a justice’s campaign if these include substantive quotations from the justice or commentary on controversies associated with the campaign, but I have excluded minor references (such as a note that a justice won reelection in a particular year). I have also excluded minor references of other sorts, such as those encountered occasionally in biographical sketches of other people (“so and so clerked for Justice X before moving on to various positions of increasing prominence”), unless a reference discusses Justice X’s influence on a person’s career (very rare). Excluded, too, are notes that a justice did not participate in a particular decision. However, I have counted articles that cite other articles said to quote a justice on a matter under discussion in the first article. None of these exclusions or inclusions occur frequently, and while disagreement might arise over the proper classification of one example or another, no rational approach would affect this post’s main theme (the massively larger numbers for Justice Abrahamson in Tables 1 and 2). Another question concerns the categorization of critical discussions of a justice’s conduct. Although there are comparatively few such articles for most justices in this study, fully half or more of the references to Justices Ziegler and Gableman were disapproving—pertaining to judicial-ethics concerns for Justice Ziegler and election-campaign issues for Justice Gableman. Should articles with such commentary be included in a post devoted to assessing a justice’s eminence? In view of this post’s main theme—the much larger number of references to Justice Abrahamson than to the other justices—I will be conservative and count all of the judicial-ethics articles and electoral-campaign articles for Justices Ziegler and Gableman respectively. The total number of hits of any sort for both justices is very small (46 for Justice Ziegler and 36 for Justice Gableman at the time that I ran my searches), and, thus, any approach to categorizing them will not alter the post’s principal conclusions.[4] The previous post was confined to citations of the justices’ majority/lead opinions. Today’s post includes references to separate opinions as well.[5] I used the same estimation method for Table 2 as for Table 1. Gray-area questions are extremely rare when searching for references to publications and speeches. [6] It bears emphasizing that the figures in this table are estimates, generated from random samples as described above. If a justice wrote only a couple articles, and if these articles were rarely cited by other authors, there is a reasonable chance that they might not be captured by my random sample—resulting in an estimate of zero for that justice.